The Way Forward in the War on Terror

A Congressional Candidates Response to the Afghanistan Surge of 2009

Somewhere between the events of 911 and the President’s Afghanistan “surge speech” we seem to have forgotten that what distinguishes us from the terrorists trying to kill us is our commitment to the rule of law. Terrorists and pirates care nothing about safeguarding individual liberty or fundamental human rights, but we do. Our commitment to these formalities is what makes us human and free and makes them the enemies of humanity. This commitment requires us to provide due process and equal protection to all persons, not only citizens, within our Republic’s jurisdiction regardless of where they were captured or where they are currently held. (14th Amendment) To meet this due process requirement, and to classify enemy combatants, terrorist or pirates as prisoners of war, requires; 1. notice; 2. an opportunity to be heard. For soldiers of a foreign sovereign to have the required notice requires a formal declaration of war issued by our Congress. Article I section 8 of the Constitution limits this power to only the Congress. This power cannot be delegated to the President by way of Authorization for the Use of Force Resolutions, as was done in Iraq and Afghanistan, because the President would then be able to commit acts of war without a war being first properly declared. The President may defend the lives, liberty and property of U.S. Citizens while eminent threats remain but to go on offense requires a proper congressional war declaration.

For suspected international terrorists or pirates to have the notice required under due process requires that Letters of Reprisals (declarations of war upon stateless actors and activities) be issued against them by Congress and for Congress to have defined and set the punishments for piracies and offences against the law of Nations. (Article I Section 8) To date, no Letters of Reprisal have been issued against ANY terrorist organization or activity. For all of the persons herein mentioned, an opportunity to be heard is provided when the above formalities have taken place, before or during the outbreak of hostilities, thereby allowing these persons to be classified as prisoners of war, held under military authority and tried in accordance with the Uniform Code of Military Justice.

Considering then our commitment to the rule of law, the way forward in the War on Terror is clear. First, we must withdraw conventional occupation forces from any sovereign that has not had a congressional declaration of War issued against it or Letters of Reprisal issued against terrorist groups harbored therein. Second, those foreign groups and individuals that have in the past and continue to this day to use violence to infringe upon the lives, liberty or property of Americans must have Letters of Reprisal issued against them so that they can be killed or captured legally. Third, those that are then captured must be treated as prisoners of war and housed in military prisons until they can receive a fair trial and just punishments in accordance with the Uniform Code of Military Justice. And finally, we must use our superior force projection capabilities, Letters of Marque (bounties) and diplomatic contacts to interdict those with Letters of Reprisal levied against them as they attempt to travel and or congregate.

Given the government’s current commitment to expanding our military presence in Afghanistan as outlined by the President’s speech Tuesday last, I am calling upon my future colleagues in the Congress to remember our commitment to the rule of law by immediately voting on resolutions to secure Letters of Reprisal against Al Qaida in Afghanistan and Pakistan and to define and set the punishments for international terrorism and piracy. To do otherwise is to turn the courage, honor and valor of our veterans into instruments of lawlessness and unconstitutionality. Such is the size and scope of our legal errors prosecuting the War on Terror up till now that they are nearly insurmountable. But if we will return to our founding principles, codified in the Constitution, the Spirit of the Founders will light our way.